Canada: Duty To Negotiate In Good Faith: What About Salary Issues?

The Commission des relations du travail1 (CRT) recently determined that by, among other things, remaining inflexible on salary issues during the collective bargaining round for the public and parapublic sectors, the Government of Quebec and Monique Jérôme-Forget, as Minister responsible for Government Administration and President of the Treasury Board, had failed to negotiate in good faith.


The collective bargaining round for the public and parapublic sectors unfolded between 2003 and 2004. During the round, monetary issues, mainly salaries, were negotiated at a master bargaining table, while non-monetary clauses were negotiated at 56 sector tables. On a parallel track to this process, the parties carried out the evaluation of jobs to meet the requirements of the Pay Equity Act.2

Based on the state of public finances, in June 2004 the government set a budgetary framework of 12.6% over six years for salary costs, including both salary increases to be negotiated and the pay equity settlement. Various government representatives, including Monique Jérôme-Forget, reiterated this position to the unions and in the media throughout the bargaining process. According to the government, pay equity costs were included because they were paid out of the same fund, although this position did not prevent Ms. Jérôme-Forget from stating during a press conference that [translation] "pay equity is not negotiable. It's a right."

From June 2004 until salary conditions were imposed through the passage of An Act respecting the conditions of employment in the public sector, S.Q., 2005 c. 43 (Bill 43), the government never diverged from its financial framework. It rejected all counter-proposals from the unions, and it has been demonstrated that the person responsible for negotiating for the government was never given a mandate to negotiate an agreement beyond the established financial framework.

Moreover, during a press conference on November 3, 2005, Ms. Jérôme-Forget said that she was [translation] "personally available to meet with the union partners at any time and explore accommodations for a settlement with them, again within the financial framework." After she made this statement, a union representative tried to get an appointment with the minister, but was unsuccessful.

On December 14, 2005, upon learning that a bill was about to be tabled, a group of union representatives contacted the government's chief negotiator, who confirmed the news, adding that no more meetings would be held on salary issues at the master bargaining table because the government had nothing new to offer.

On December 15, 2011, Bill 43 was passed, imposing salary conditions on all employees as well as non-monetary working conditions on employee groups that had not successfully reached an agreement with the government at the sector level.

After Bill 43 was enacted, the unions filed complaints against the government and the Minister responsible for Government Administration and President of the Treasury Board, alleging that the government and the minister had negotiated in bad faith. The government, for its part, filed similar counter-complaints against the unions.

Analysis and decision

From the outset, the CRT felt that the proof on a balance of probabilities demonstrated that the government had failed in its duty to negotiate in good faith by adopting an initial position that it then maintained, without showing any openness, throughout the bargaining process. Supported by case law interpreting the duty to negotiate in good faith, covered by section 53 of Labour Code,3 the CRT felt that this duty required both parties to adopt an attitude demonstrating a real and bona fide effort to reach an agreement.

The evidence submitted to the CRT regarding the government's behaviour revealed the opposite: the government did not intend to negotiate on salaries. The government's intransigence was borne out by, among other things, the fact that the person responsible for negotiations was not given a mandate to negotiate beyond the financial framework and that the chief negotiator refused to meet with union representatives at the master bargaining table, despite the imminent tabling of a special bill, on the grounds that the government had nothing new to offer. As the CRT put it, [translation] "negotiations weren't firm; they were closed." Faced with such a position, the union side could do only one of two things: accept the employer's proposal or have it imposed on them. The CRT also pointed out that Bill 43 could have retroactively relieved the government of its duty to negotiate in good faith, something the lawmakers had not seen fit to provide for.

The CRT set aside the government's argument that it wished to reach an agreement, as expressed publicly by Ms. Jérôme-Forget, as it determined that the constraints of the financial framework had made reaching an agreement impossible.

Furthermore, the CRT felt that the government had also failed in its duty to negotiate in good faith by including the pay equity settlement in the 12.6% budget framework. In fact, the report tabled in the National Assembly by the Minister of Transport in 2006 states that [translate] "pay equity must be kept off the bargaining table; the mechanisms of the Labour Code permitting a power relationship do not apply; and it lies with the Commission de l'équite salariale to settle disputes." According to the CRT, the government failed in this commitment by suggesting that pay equity and salary increases were linked. While not denying that the amounts paid for pay equity and wage increases came from the same fund, the CRT felt that [translation] "linking pay equity to negotiations undermines the process and jeopardizes the existence of pay equity."

The CRT rejected all the government's counter-complaints against the unions, except the one against the Fraternité des constables du contrôle routier du Québec, which bargained in bad faith by systematically refusing to negotiate before knowing the outcome of the job re-evaluation exercise provided for in a letter of agreement.

Lastly, in accordance with the agreement between CRT and the parties, la CRT is holding a hearing during which it will decide on which remedies to order, if any.


With this decision, the CRT reaffirmed the principles developed regarding the duty to negotiate in good faith, but in the specific context of negotiations carried out on a parallel track to the application of the Pay Equity Act. The CRT's finding that the government negotiated in bad faith is not based on the passage of Bill 43, the legality of which is currently being contested by several unions before the higher courts, but rather on the fact that the government adopted a rigid position throughout the bargaining process, while including pay equity, a "non-negotiable" issue.

Although the decision in this case relates to public and parapublic sector negotiations, private sector employers who are getting ready for collective bargaining should still bear the decision in mind when putting together their offers. They need to be skilful and balanced to ensure that they bargain hard, which is entirely acceptable, and not bargain in bad faith, which is not allowed. Moreover, it now seems to be established that including pay equity issues in the collective bargaining process could be a perilous move.


1 Association des juristes de l'État et Syndicat des agents de la paix en services correctionnels du Québec et autres, 2012 QCCRT 0043.

2 R.S.Q., c. E-12.001.

3 R.S..Q., c. C-27.

Norton Rose Group

Norton Rose Group is a leading international legal practice. We offer a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

Knowing how our clients' businesses work and understanding what drives their industries is fundamental to us. Our lawyers share industry knowledge and sector expertise across borders, enabling us to support our clients anywhere in the world. We are strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.

We have more than 2900 lawyers operating from 43 offices in Abu Dhabi, Almaty, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Bogotá, Brisbane, Brussels, Calgary, Canberra, Cape Town, Caracas, Casablanca, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.

Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose Canada LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.

On January 1, 2012, Macleod Dixon joined Norton Rose Group adding strength and depth in Canada, Latin America and around the world. For more information please visit

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.